Malec, Malec, Kaltush, Ishpatao, Tettaut, Malec, Mestépapéo, Kaltush v. Conseil des Montagnais de Natashquan

Malec, Malec, Kaltush, Ishpatao, Tettaut, Malec, Mestépapéo, Kaltush v. Conseil des Montagnais de Natashquan
Collection
Canadian Human Rights Tribunal
Date
2010-01-27
Neutral citation
2010 CHRT 2
File number(s)
T1318/4808
Decision-maker(s)
Doucet, Michel
Decision type
Decision
Decision status
Final
Grounds
Race
Decision Content
Between:
Evelyne Malec, Sylvie Malec, Marcelline Kaltush, Monique Ishpatao, Anne B. Tettaut, Anna Malec, Germaine Mestépapéo, Estelle Kaltush
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Conseil des Montagnais de Natashquan
Respondent
Decision
Member: Michel Doucet Date: January 27, 2010 Citation: 2010 CHRT 2
Table of Contents
I. Facts Related to the Allegation of Discrimination.
A. The Innu community of Nutashkuan.
B. Allegations of Discrimination.
C. Legal Context
(i) Isolated Post Allowance.
(ii) Annual Outing Allowance.
(iii) Housing Allowance.
II. Allegations of Retaliation.
A. The Law..
B. Facts Regarding the Allegation of Retaliation (Section 14.1 of the Act)
(i) Évelyne Malec.
(ii) Estelle Kaltush.
(iii) Sylvie Malec.
C. Conclusion Regarding the Allegations of Retaliation.
III. Section 67 of the Canadian Human Rights Act
IV. Remedies.
A. The Isolated Post Allowance.
B. Compensation For Pain And Suffering - Paragraph 53(2)(E) of the Act
C. Special Compensation - Subsection 53(3)
[1] On April 21, 2007, Évelyne Malec, Sylvie Malec, Marcelline Kaltush, Monique Ishpatao, Anne B. Tettaut, Anna Malec, Estelle Kaltush and Germaine Mesténapéao, Innu from the Montagnais community of Natashquan, (the complainants) filed a complaint with the Canadian Human Rights Commission, alleging discrimination in employment based on their race, national or ethnic origin, contrary to section 7 of the Canadian Human Rights Act, R.S.C. (1985), c. H-6 (the Act) by the Conseil des Montagnais de Nutashkuan (the respondent). Three of the complainants, Évelyne Malec, Sylvie Malec and Estelle Kaltush, also allege that the respondent retaliated or threatened retaliation against them following the filing of their complaints, contrary to section 14.1 of the Act.
[2] The complainant Évelyne Malec is a special education teacher at Uauitshitun School in the Innu community of Nutashkuan. Since 2001, except for the 2003-2004 school year, she has been continuously employed at this school. Ms. Malec's employment contract indicates she has a bachelor's degree in education and certificates in Aboriginal studies and Amerindian teaching. Ms. Malec's spouse is Richard Boies. They have been married since 2003. Mr. Boies is also a teacher at Uauitshitun School.
[3] The complainant Anne Bellefleur-Tettaut is an Innu teacher for grades 1 to 6 at Uauitshitun School. She taught from 1983, except for the 2003-2004 school year. Ms. Bellefleur‑Tettaut retired in June 2007. The complainant does not have a bachelor's degree, but has a teacher's certificate and a teacher's permit.
[4] Estelle Kaltush has a bachelor's degree in education. Since 1990, except for four years, she has been teaching at Uauitshitun School. Ms. Kaltush held the position of vice principal from 2003 to 2009 and the position of acting principal from January to June 2007.
[5] Anna Malec is a kindergarten teacher at Uauitshitun School. She earned her bachelor's degree in education from the Université du Québec à Chicoutimi in 1985. Since then, except for the 2003-2004 school year, she has been working at the community school.
[6] Marceline Kaltush has a bachelor's degree in education, which she obtained in 1985. Since 1990, she has been teaching at Uauitshitun School.
[7] Sylvie Malec has been teaching at Uauitshitun School since January 2003, except for the 2003-2004 school year. She teaches Innu. She does not have a bachelor's degree.
[8] The complainant Monique Ishpatao has a bachelor's degree in preschool and primary school education. Since 1990, except for the 2003-2004 year, she has been teaching at Uauitshitun School.
[9] Germaine Mesténapéao did not appear, nor did she offer any testimony at the hearing.
[10] The complainants were represented at the hearing by Richard Boies, a co-worker and, as noted above, the complainant Évelyne Malec's husband. The respondent was represented by Maurice Dussault, counsel from the law firm Dussault Larochelle Gervais Thivierge.
[11] The Canadian Human Rights Commission did not participate in the hearing.
I. Facts Related to the Allegation of Discrimination A. The Innu community of Nutashkuan [12] Located on the shores of the Gulf of St. Lawrence, the Innu community of Nutashkuan is 376 kilometres east of Sept-Îles, in the province of Quebec. The community's territory has a common border with the municipality of Natashquan and has been accessible by route 138 since 1996. The community's population is around 1,000.
[13] The Innu community of Nutashkuan has the infrastructure usually found in Aboriginal communities, including a school. Before 1990, this school was administered by the Department of Indian Affairs and Northern Development (DIAND). Since 1990, the school has been under the respondent's authority. The respondent designated a councillor to take responsibility for the education sector. At the time relevant to this case, Nicolas Wapistan had this designation.
[14] Uauitshitun School has around 160 students: 60 in the secondary division and 102 in the primary division. The teaching staff is composed of 11 teachers at the secondary level and 8 at the primary level. Of the 19 teachers, 9 are Innu.
[15] For many years, Uauitshitun School has had a high turnover rate among principals. They changed yearly, which complicated relations between the administration and the teachers.
[16] The neighbouring village of Natashquan also has a school, École Roger-Martineau. This provincial school is under the responsibility of Quebec's Moyenne-Côte-Nord school board. Roger-Martineau School is around five kilometres from Uauitshitun School. It has close to 108 primary and secondary students. The proportion of Innu students enrolled at the primary school level at Roger-Martineau is around 75% and at the secondary level, 70%. This school offers preschool to Secondary III programs. In Secondary IV and V, students attend Monseigneur-Labrie school in Havre-Saint-Pierre, a community located around 150 kilometres from Natashquan.
[17] As of March 31, 2005, the respondent had accumulated a budget deficit that exceeded $5 million. As a result, at the beginning of April 2005, DIAND appointed a co‑manager to administer the respondent's finances. In October 2005, noting that despite the appointment of the co‑manager, the financial situation was not improving, DIAND decided to appoint a third party to administer funds so the money used to provide services to the community members would not be seized by the respondent's creditors. A few weeks later, the Health Canada did the same.
[18] DIAND and Health Canada appointed the firm BDL Conseiller en administration as the third party manager. Dominique Blackburn was BDL's representative for this third party management, which has three components:
deliver essential services to the members of the community; help the respondent prepare its debt repayment plan; act as facilitator between the main partners, suppliers, financial institutions and departments.
[19] Starting October 1, 2005, all the respondent's expenses had to be pre-approved by the third party manager, including those in the education sector.
[20] Following the appointment of the third party manager, the respondent submitted a plan to adjust its finances and implement an organizational structure and administrative policies that would allow it to provide services to the members of the community. This remedial management plan was submitted to and adopted by DIAND in 2006. The plan showed that, among others, education budgets had to be adjusted because the sector had accumulated significant deficits over the previous years. The problems in the education sector had resulted in many parents in the Nutashkuan community deciding to take their children out of the community school and instead sending them to Roger-Martineau School in the village of Natashquan. Since educational funding in Aboriginal communities is based on number of students, having many students leave for the Moyenne Côte-Nord school board resulted in a significant annual shortfall for the education sector.
[21] In addition to the administrative and financial measures, under the band's remedial management plan, it was also to update and develop various administrative and financial policies. To this end, a financial management policy and a human resources management policy (including the education sector) were submitted in the fall of 2007. The purpose of these policies was to bring order to the administration of services the respondent provided and to the treatment of employees.
[22] Since March 31, 2009, DIAND has removed the third party management. Health Canada has decided to maintain third party management for some time. Where DIAND is concerned, the respondent is now under co-management.
[23] André Barrette also worked for the third party manager, BDL. He testified that he did not personally know the complainants and he did not receive any specific instructions from his superiors regarding the education sector. He said he was informed of the complaints by Jules Wapistan, the respondent's financial and administration coordinator. The issues regarding employees were the responsibility of Mr. Wapistan and Dominique Blackburn, from BDL. Mr. Blackburn was not called as a witness.
B. Allegations of Discrimination [24] In June 2005, treatment of employees at Uauitshitun School was governed by a document called, Entente intervenue entre le Conseil des Montagnais de Nutashkuan et le personnel de l’École Uauitshitun de Nutashkuan – Convention réciproque de traitement du personnel de l’École Uauitshitun de Nutashkuan [Agreement between the Montagnais de Nutashkuan Band Council and Employees at the Uauitshitun School in Nutashkuan—Mutual Agreement on the Treatment of Employees at the Uauitshitun School in Nutashkuan]. According to the evidence, it seems that a similar policy had been in force since at least 1990, the year the school came under the respondent's responsibility. This agreement included the following provisions:
[Translation]
3.13 Place of permanent residence?
Residence in the legal sense of the term at the time of hiring, insomuch as the residence is located in the province of Quebec.
6.5 Isolated post allowance to teaching staff with at least a bachelor's degree and to professional employees with the same level of education.
6.51 The annual isolated post allowance is credited to the employee in 26 bi‑monthly payments at the pay period.
6.5.2 The rate of the annual isolated post allowance is granted to the employee based on whether the employee has a dependent (minor dependent child) residing permanently at the workplace residence or is considered without dependents.
6.5.3 Rate of isolated post allowance:
With dependent child(ren): $6,000 Without dependent child: $3,000.
N.B. If two employees are married or are common-law spouses, only one of the two may claim the isolated post allowance with dependent child (if the conditions are met) and the other employee shall receive the allowance for an employee without a dependent child.
8.4 Allowances for annual outings for employees hired outside a 50 km radius.
8.4.1 Allowances are provided for three annual outings.
8.4.2 Except by special authorization from the school's administration, the schedule for outings is:
- 1st outing: Start date at the beginning of the year and vacation departure - 2nd outing: Christmas - 3rd outing: Easter or spring break.
8.4.3 Amount of allowance
8.4.3.-I The allowance for annual outings is as follows, according to the city of residence at the time the employee was hired, and is for a round trip:
Montréal: $950 Québec: $750 Sept-Îles: $300.
8.4.3.-II For other locations, the allowance is adjusted based on the three cities with set allowances under the preceding paragraph.
8.4.4 Payments occur at least 5 working days before the effective date of the annual outing.
8.6 Housing allowance
8.6.1 The council provides a monthly housing allowance to employees according to the following terms:
8.6.2 Monthly allocation: $450.
8.6.3 When two or more employees share a domestic residence, the sharing must be proportional.
[25] In 2007, the respondent adopted its Politique des ressources humaines – Personnel de l’école Uauitshitun[Human Resources Policy—Employees at Uauitshitun School] that replaced the 2005 agreement. According to the complainants, this policy was not accepted by the teachers at Uauitshitun School. They also allege that the new policy was never adopted by the respondent. No evidence was submitted to the Tribunal that suggests the policy had to be approved by the teachers to be effective. As to the issue of whether the respondent formally adopted the policy, it was never truly clarified at the hearing. Whatever the case, it seems clear that as of February 2007, everyone behaved as if this policy were in force.
[26] The following is provided under this policy:
[Translation]
4.15 Resident
Any person working for the Council whose ordinary and main place of residence and/or that of his or her spouse is Nutashkuan or is less than 50 km from Nutashkuan shall be considered a resident within the meaning of the employment policy of the Council.
The employee's residence status may change during the course of employment and the Council reserves the right to reassess the residence status of its employees in the education sector yearly.
(Section 55 of the Canada Elections Act defines place of ordinary residence as: The place of ordinary residence of a person is the place that has always been, or that has been adopted as, his or her dwelling place, and to which the person intends to return when away from it.)
10.7 Isolated post allowance for non-resident teaching staff and professional employees
The annual isolated post allowance is credited to the employee in 26 bi‑monthly payments at the pay period. The rate of the annual isolated post allowance is granted to the employee based on whether the employee has at least one dependent (dependent minor child) who resides permanently at the workplace residence or is considered without dependents. Rate of isolated post allowance:
With dependent child(ren): $6,000 Without dependent child: $3,000.
10.7.1 If two employees are married or are common-law spouses, only one of the two may claim the isolated post allowance with a dependent child (if the conditions are met) and the other employee shall receive the allowance for an employee without a dependent child.
10.8 Allowances for annual outings for non-resident employees
a. Three (3) annual outings at the following times or by special authorization from the school's administration:
1st outing: Start date at the beginning of the year and departure for vacation.
2nd outing: Christmas
3rd outing: Easter or spring break.
b. The allowance for annual outings is as follows, depending on the where the non-resident employee was hired and is for a return trip:
Montréal: $850 Québec: $750 Sept-Îles: $300
N.B. Allowances for other locations shall be pro-rated to adjust for the distance from the closest city indicated above.
c. The payment will be made at least five working days before the effective date of the annual outing.
10.10 Housing allowance for non-resident employees
10.10.1 Monthly allowance
The Council grants a monthly housing allowance to non-resident employees on the following terms:
10.10.2 Monthly allowance: $450
10.10.3 When two non-resident employees are common-law spouses or married persons, they allowance from a single allowance of $450.00. The employee is responsible for his or her own rent and lease.
10.10.4 When two employees live in the same residence, a single housing allowance is granted and half is paid to each member occupying the residence.
10.10.5 When the Council rents one of its unheated and furnished units, the monthly rent is $200.
[27] According to the evidence, until 2007, all non-Aboriginal teachers at Uauitshitun School and one Aboriginal teacher, received these allowances. The Aboriginal teacher who had received the allowance worked at Uauitshitun School for one year. This teacher, who was not Aboriginal by birth, was married to an Aboriginal person, an Attikamek, and had acquired Aboriginal status as a result, pursuant to the Indian Act. The respondent would use this exception to claim its policy was not discriminatory towards Aboriginal teachers.
[28] On February 21, 2007, some non-Aboriginal teachers living within 50 kilometres received a letter from the school's administration informing them that under the respondent's new policy, an employee [Translation] must live outside a 50 km radius to be entitled to the housing and outing allowances. The letter also stated that the school's administration had noticed that certain teachers who were receiving the allowances had a permanent residence inside this zone. Those teachers were therefore no longer admissible for the $450 a month allowance for rent or for the three annual outings. The letter also informed the teachers that starting February 22, 2007, they would no longer be receiving an allowance for these allowances and they were to repay certain amounts they had mistakenly been paid from the beginning of the 2006-2007 school year. The letter makes no mention of the isolated post allowance. However, article 10.7 of the new policy clearly states that the isolated post allowance would only be paid to non-resident teachers from that point on.
[29] The complainants allege that the respondent's policy regarding these allowances discriminates against Innu teachers because they do not have the right to the same benefits as those granted to non-Aboriginal teachers.
C. Legal Context [30] The purpose of the Act is stated at section 2:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
[31] Human rights legislation has been described as of a special nature, not quite constitutional but certainly more than the ordinary (Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R., para. 12). The Supreme Court of Canada elaborated on the purpose and objectives of this legislation and the manner in which they were to be interpreted, in Canadian National Railway v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 to 1134 (sub nomine: Action Travail des Femmes):
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.
[32] Section 7 of the Act states that it is a discriminatory practice to differentiate adversely in relation to an individual in the course of employment on a prohibited ground of discrimination. Under section 3, prohibited grounds of discrimination include race, religion and national or ethnic origin.
[33] Since the Supreme Court decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also referred to as Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also referred to as Grismer], the classical distinction between direct discrimination and indirect discrimination has been replaced by a unified approach to analyzing human rights complaints. Under this analysis, the complainant must first establish prima facie evidence of discrimination. P rima facie evidence is evidence that covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of a reply from the respondent.
[34] Once prima facie evidence of discrimination has been established, the onus is on the respondent to prove that no prohibited grounds were present in the respondent's behaviour or to prove, on a balance of probabilities, that there is a bona fide justification for the discriminatory standard or policy. To do this, the respondent must prove that:
It adopted the standard for a purpose or goal rationally connected to the performance of the job. The focus at this step is not on the validity of the particular standard, but on the validity of its more general purpose. It adopted the particular standard in the sincere belief that it was necessary to the fulfillment of the legitimate work-related purpose, with no intention of discriminating against the claimant. At this stage, the focus shifts from the general purpose of the standard to the standard itself. The contested standard is reasonably necessary to accomplish its goal. The employer must demonstrate that it cannot accommodate the claimant and others affected by the standard without suffering undue hardship. (See, in particular, section 15 of the Act.)
[35] In this case, the complainants must first establish prima facie evidence that they were adversely differentiated against in the course of employment based on their race or national or ethnic origin. As stated above, prima facie evidence covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of a reply from the respondent (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28).
[36] The complainants submit that they were discriminated against because of their Aboriginal status, compared to the non-Aboriginal teachers. They claim specifically that the respondent adversely differentiated against them in the course of employment by disallowing certain benefits to them that were granted to non-Aboriginal teachers. They refer, in particular, to the housing and isolated post allowances and those for the outings provided for in the respondent's policy.
[37] The respondent claims in its reply that the complainants did not establish prima facie evidence of discrimination. It did not submit evidence that there was a bona fide justification for the policy in question within the meaning of Meiorin and Grismer. In his final arguments, counsel for the respondent claimed that allowing the complainants' requests would impose a burden on his client that would send the community back into a financial crisis. But, again, no tangible evidence was submitted to support this claim.
(i) Isolated Post Allowance [38] Until February 2007, the policy that applied to teachers at Uauitshitun School provided for an isolated post allowance to members of the teaching staff that held at least a bachelor's degree and to professional employees with the same education, regardless of the distance between their permanent place of residence and the school. The amount of the allowance varied based on whether the teacher had dependent children ($6,000) residing permanently with him or her, or was considered without dependents ($3,000). Moreover, the policy established that if two employees were married or common-law spouses, only one of the two could claim the isolated post allowance for dependent children, and the other employee would receive the isolated post allowance without dependent children.
[39] The Tribunal notes that in regard to the isolated post allowance, the policy does not distinguish between resident or non-resident employees. Nothing in the policy indicates that it is paid as an allowance to recruit or to help recruit teachers from outside the Natashquan region.
[40] Moreover, it is clear that the only teachers who received this allowance were non‑Aboriginal teachers, although once, it was paid to an Aboriginal teacher whose status had been acquired under the Indian Act.
[41] The respondent did not submit any evidence to explain the origin or underlying reason for this allowance. During his closing statements, counsel for the respondent essentially relied on the testimony of certain complainants who had testified that the isolated post allowance had been paid to non-Aboriginal teachers from outside the area to conclude that these statements were admissions about the rationale for the allowance and that its payment to only certain teachers could not be considered discriminatory. The Tribunal cannot agree with this conclusion. The fact that certain complainants made this statement cannot lead to a justification of the policy regarding the payment of these allowances. The Tribunal considers that by giving these answers, the complainants were simply stating a fact known to everyone in the teaching staff: that non‑Aboriginal teachers received this allowance. Moreover, the uncontested evidence clearly shows that until February 2007, non-Aboriginal teachers permanently residing in the Natashquan region received the allowance. The fact that a teacher with Aboriginal status had, at one time, received the allowance, does not change our finding. The respondent did not submit any evidence to the Tribunal that justified why the allowance was not paid to Innu teachers at Uauitshitun School.
[42] In 2007, the respondent adopted a human resources policy for Uauitshitun School employees, which replaced the 2005 agreement. Under this policy, any person working for the respondent and whose ordinary place of residence is Nutashkuan or within 50 km from Nutashkuan shall be considered a resident.
[43] As for the isolated post allowance, we note that there was little change in the new policy except that under article 10.7, the allowance was paid only to non-resident teachers. Now, the policy no longer differentiates between Aboriginal and non-Aboriginal teachers. The distinction is based solely on place of residence.
[44] Considering all the evidence submitted at the hearing, the Tribunal finds that the complainants established prima facie evidence that until 2007, they were adversely differentiated against because of their race by the respondent's refusal to grant them an isolated post allowance, when such an allowance was paid to all non-Aboriginal resident teachers.
[45] The burden is now on the respondent to show, on a balance of probabilities, that there was a bona fide justification to deny the complainants the isolated post allowance. The respondent did not submit any evidence to justify this unfair treatment. Moreover, the respondent did not submit any evidence to show that the treatment was due to the permanent residence of the recipients rather than their race/ethnic or national origin. The so-called admissions by the complainants have no probative value that would allow such a conclusion or practice.
[46] As a result, the Tribunal finds that the complainants established prima facie evidence that before 2007, they were adversely differentiated against in the course of employment because of their race, contrary to section 7 of the Act, by the treatment they received from the respondent when it refused to pay an isolated post allowance although such an allowance was paid to all non‑Aboriginal teachers, residents or not.
(ii) Annual Outing Allowance [47] Before 2007, the agreement with the teaching staff provided an allowance for annual outings for employees from outside a 50-kilometre radius of Natashquan. There are three allowances for the annual outings and the schedule is as follows: first outing -entry into duty at the start of the year and departure for vacation; second outing - Christmas; and third outing - Easter or spring break. The amount of the annual outing allowance is based on the city of residence at the time the employee was hired, and is for a round trip: Montréal, $950; Québec, $750 and Sept-Îles, $300.
[48] It is clear from the wording of the policy that this allowance applies to employees whose residence is more than 50 kilometres from Natashquan. The new policy adopted in 2007 makes no changes to this, other than defining the expression resident more precisely. Although the respondent might have paid this allowance to teachers residing within 50 kilometres in the past-as was the case, for example, with Richard Boies—it is clear that the intent of the allowance is to allow non-resident teachers to be able to return to their city of residence at least three times a year. As for payments that were made to ineligible teachers, it seems the February 2007 letter intended to correct this situation.
[49] With regard to the payment of this allowance, the Tribunal cannot find that the complainants established prima facie evidence that they were adversely differentiated against because of their race by the respondent's refusal to pay an allowance for annual outings. None of the evidence showed that any of the complainants or any Innu teacher residing outside a 50‑kilometre radius was denied this allowance.
[50] As a result, the Tribunal finds that the complainants did not establish prima facie evidence that they were adversely differentiated against in the course of employment due to their race by the respondent's refusal to grant them an annual outing allowance for teachers residing outside a 50-kilometre radius of Natashquan.
(iii) Housing Allowance [51] Under the policy in force before 2007, the Council would grant a monthly housing allowance of $450 to its teachers. Nothing in the policy indicates that the allowance is paid only to teachers not residing in Natashquan or inside a 50-kilometre radius of Natashquan. The policy adopted in 2007 now grants this monthly allowance solely to non-resident employees, namely those living outside a 50-kilometre radius of Natashquan.
[52] Until 2007, all non-Aboriginal teachers received this housing allowance. Aboriginal teachers, with the exception of the teacher we mentioned above who had Aboriginal status, did not receive this allowance. In 2007, as was the case with the annual outings allowance, non‑Aboriginal teachers residing inside the 50-kilometre radius were advised they would no longer receive this allowance. As a result, as of 2007, it is no longer possible to state that non‑Aboriginal teachers are the only ones not receiving this allowance.
[53] Can the respondent's refusal to pay this allowance to Aboriginal teachers, until 2007, be considered a discriminatory practice contrary to section 7 of the Act?
[54] The evidence submitted at the hearing established that the purpose of the allowance was to help non-resident teachers pay the cost of their housing in the village of Natashquan or nearby. Geneviève Tacshereau-Néaschit, a witness for the respondent, testified that it is rather difficult for teachers from outside the area to find adequate housing at a reasonable price in the region. This evidence was not challenged by the complainants.
[55] As for the complainants, who all live on the territory of the Innu community Nutashkuan, except for Évelyne Malec, the evidence shows they benefitted from some housing-related allowances. Determining whether they are appropriate is not for the Tribunal to decide. Regardless, they still benefitted from the respondent's housing policy, which the non-Innu teachers could not. Moreover, none of the complainants testified that they paid $450 or more per month for their accommodations. Some even testified that they paid nothing at all. As for Évelyne Malec, the evidence showed that she could not receive this allowance because during the period of her employment, her spouse, Richard Boies, received the allowance of $450 a month.
[56] Whatever the case, based on the evidence, the Tribunal cannot conclude that the complainants established prima facie evidence that they were adversely differentiated against in the course of employment based on their race by the respondent's policy to pay a monthly allowance to non-Aboriginal teachers.
II. Allegations of Retaliation A. The Law [57] Before the hearing started, the complainants filed a motion to amend their complaint to add allegations that the respondent retaliated against several of them contrary to section 14.1 of the Act. The Tribunal granted this motion in the ruling Malec et al. v. Conseil des Montagnais de Natashquan, 2009 CHRT 5.
[58] Pursuant to section 14.1 of the Act, it is a discriminatory practice for a person against whom a complaint has been filed, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
[59] Retaliation implies some form of wilful conduct meant to harm or hurt the person who filed a human rights complaint for having filed the complaint. As the Tribunal noted in Virk v. Bell Canada (Ontario), 2005 CHRT 2, at paragraph 156: This view departs in part from those expressed in previous decisions of this Tribunal on the issue of retaliation (Wong v. Royal Bank of Canada, [2001] CHRT 11; Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 40 (CanLII), 2004 CHRT 40). In Bressette and Wong, the Tribunal found that a complainant did not have to prove an intention to retaliate. It had only to show it reasonably perceived the impugned conduct by the respondent to be in retaliation quite apart from any proven intention of the respondent. In this case, the Tribunal adopts the approach set out in Virk.
[60] In the case of allegations of retaliation, it is the complainant who has the burden of proving retaliation actually took place. The complainant must therefore prove that the person or persons it claims retaliated knew of the existence of the complaint and that this person or persons acted in an inopportune way and the conduct of that person or persons was motivated by the filing of the complaint.
[61] As a result, what is required is proof that the respondent or its representative retaliated and knew of the existence of the complaint and that the respondent or its representative acted in an inopportune way, giving rise to a prima facie case. Once this prima facie case is established, it becomes the respondent's responsibility to give a reasonable explanation for its actions. If the explanation is not credible, the Tribunal should find that the allegation of retaliation is substantiated.
B. Facts Regarding the Allegation of Retaliation (Section 14.1 of the Act) [62] At the hearing, the agent for the complainants stated that the allegations of retaliation had been made solely by the complainants Évelyne Malec, Sylvie Malec and Estelle Kaltush. The alleged retaliation essentially consisted of disciplinary action, taken between September 9, 2008, and December 16, 2008. The details of the incidents that support the allegations of retaliation for each of the complainants follow.
(i) Évelyne Malec [63] The evidence the complainant submitted in support of her allegations of retaliation focus on her relationship with the principal of Uauitshitun School, Marcel Rodrigue.
[64] Mr. Rodrigue was officially hired as the school's principal at the end of August 2008, a few days before the start of the school year. From the beginning, relations between the new principal and the complainant were strained. For example, Ms. Malec states that at their first meeting, the new principal said, [Translation] You're Ms. Malec? I have heard a lot about you. A little later,, she claims he said, [Translation] Are you Évelyne Malec? I've been hearing lots of things about you. She also added that he told her, [Translation] there are going to be anti-establishment protestors. Although at the time he did not mention the proceedings undertaken pursuant to the Act, the complainant is sure that he was aware of them because [Translation] there are no secrets at BDL.
[65] Mr. Rodrigue confirmed that before accepting the position as principal, he had discussed the situation at Uauitshitun School with his predecessor. He had told him to be ready [Translation] to manage opposition, because you are going to be facing some. He added that during this conversation there was never any talk of the complaints or complainants.
[66] As for Ms. Malec's allegations of retaliation, the first incident allegedly occurred on August 28, 2008. That day, the complainant was called to a meeting by the principal. He informed her that another teacher had filed an internal complaint against her following an altercation they allegedly had the previous day. According to the complainant, the principal did not reprimand her during this meeting. She said she gave him her version of the facts regarding the altercation. The principal indicated that it confirmed what the other teacher had described in her letter. According to the complainant, he even added that he [Translation] appreciated her honesty. However, later in her cross-examination, she added, [Translation] He [the principal] was always rude to me. From my first meeting, he has always been rude, he treats me like I am nothing. From her description of this meeting, it is difficult to conclude that the principal acted impolitely with her. The mere fact he said he appreciated her honesty seems contrary to an attitude of rudeness or ungratefulness.
[67] On September 3, 2008, Ms. Malec received a verbal warning from Mr. Rodrigue about the altercation of August 27, 2008. The complainant indicated that the principal blamed her for the incident.
[68] During his testimony, Mr. Rodrigue stated that on September 3, he had no knowledge of the complaints that had been filed under the Act. He added he only heard about these complaints for the first time near the end of October 2008 at a meeting of the teaching staff. Someone had mentioned the complaints at that time, but he added that it didn't mean anything to him because [Translation] in my mind, it was not my responsibility. I did not know who was involved in this recourse. He added that in May 2009, the complainant Évelyne Malec, informed him that he would be summoned to a legal proceeding at the beginning of June, but stated he did not know what she was talking about. He said that in early June he noticed that many teachers were absent. The school secretary then informed him they were attending the hearing. He said he was not formally informed of the proceedings or who the complainants were until the end of June or beginning of July 2009. I cannot easily accept this part of Mr. Rodrigue's testimony. The Innu community of Natashquan is not very large. The school is also fairly small. When eight teachers file a discrimination compl